Not a Zero-Sum Game

“There are two kinds of people: eaters and bakers. Eaters think the world is a zero-sum game: what you eat, someone else cannot eat, so they eat as much as they can. Bakers think that the world is not a zero-sum game—they can just bake more and bigger pies. Everyone can eat more. People trust bakers and not eaters.”Author: Guy Kawasaki

In the world of the SMPs and HR managers the inhabitants are all eaters. They wrongly think that an injury pension is there to top up to a certain level any earnings achieved by a disabled former officer. They think the pension plate is intended to only hold a certain amount of food. The worst of them think the food on the plate is not the pensioner’s food, but theirs.

They get this idea from some well-past-its-sell-by-date guidance issued by the Home Office. The plank who wrote the unlawful guidance contained in Annex C to HO circular 46/2004 (guidance now disgraced, destroyed, dismantled and withdrawn) is the same chunk of knotty pine who penned this astounding bit of nonsense:

‘How an injury award is calculated4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.’ [Our emphasis]

We have mentioned this before, but it is worth repeating, and repeating, until the message gets through. The Regulations do not place a cap on what a disabled former officer might earn, or be thought to be capable of earning. The amount of pension paid has no link whatever with earnings, whether real, speculative or whatever.

SMPs and HR managers, when they bother to actually look in the Police (Injury Benefit) Regulations 2006, and at the table in Schedule 3, which sets out the various levels of pension payment, see the phrase, ‘minimum income guarantee’ then think this means that a pensioner is not supposed to earn more outside the police than was earned whilst in the job.

They think that pension payments are like a game, where one player’s gain is always another player’s loss. They see pension payments as a drain on scarce resources.

It is but a short step from these basic misconceptions over the purpose of the police injury pension regulations to want to devise ways to gobble up whatever they can of the money due to disabled former officers.

Trouble is, their actions will come back to bite them. Truly a case of the biter bit. What SMPs and HR managers in some forces are doing is illegal, and dare we say, incredibly illogical and stupid. We don’t mean to be unkind, or descend into name-calling, even though some SMPs and HR managers have been really, really nasty to disabled former police officers. So, we can let them off the ‘stupid’ allegation, but only if their actions are recognised as considered and deliberate – which would of course mean that they had set out to break the law. So, if I were you, dear SMP or HR, I would accept the ‘stupid’ label as being no more than a factual description and implore you do something positive about it. Like gaining a proper, correct, understanding the Regulations.

We here in IODPA think you would benefit from some educating about the scope and purpose of the Regulations. When we say, ‘benefit’ we genuinely mean that. It is as much in the interest of HR managers and SMPs as it is ours to see police injury pensions administered within the law. Why risk reputation and career on a wrong-headed attacks on police injury pensions? If you would like to see your name featured, not in a nice way, in the transcript of an Administrative Court case, as has happened to the likes of Nicholas Wirz and that scion of the medical profession, Dr Broome, then, go ahead – keep on breaking the Regulations.

In effect the, literally, misguided denizens of some HR departments and the tame SMPs they instruct, administer the Regulations as if a salary of any amount is a ‘deductible benefit‘.

Perhaps this way of thinking may be valid in the world of welfare state benefits. Britain’s postwar political consensus, which guaranteed citizens ‘protection from want’ from cradle to grave colours some people’s attitudes to police injury pensions. But not in an appropriate or acceptable way. An injury pension may be a ‘benefit’ but it is not a means-tested State benefit. It is, quite simply, compensation for injury received whilst on duty, paid in the form of a pension for the life of the individual.

The drafters of the various police injury Regulations recognised that it would be wrong to receive payment twice for duty injury. So, the 2006 Regulations require that an injury pension shall be reduced by the amount of “any” Incapacity Benefit paid until the first day the pensioner is capable of working again (though not as a police officer) after retirement, at which stage the entitlement to Incapacity Benefit would cease.

In late 2008 Incapacity Benefit was withdrawn and Employment Support Allowance (ESA) began. Just as some police pension authorities blatantly disregard the Regulations in most aspects, a sizeable number of forces have continued to illegally deduct this new allowance from injury awards.

This stands as more proof, if any extra was needed, of police pension authorities who are incompetent administrators of injury awards.

ESA should not have been deducted as it is not defined as a ‘relevant benefit’ in Schedule 3 of the Police [Injury Benefit] Regulations 2006. It may well have been an oversight on the part of the Home Office not to have amended the Regulations so as to substitute ESA for incapacity benefit. The Home Office’s mistake, if that is what it was, is no excuse for forces unlawfully deducting a non-specified benefit.

Now, please pay attention, SMPs and HR managers, for this is the bit you need to get your heads around. Just as with ESA , a salary earned by a disabled former officer is obviously not defined as a ‘relevant benefit’. Unlike ESA, it never will be. An injury award is not designed as something that replaces something else only in times of need – it guarantees a minimum income whether or not other income is earned.

It is not a temporary security blanket to help only until that person is back upon their feet.

It is an award for life and serves a purpose as compensation for work-related injuries

An injury award also provides vital reassurance for police officers who may often face adverse and dangerous situations in their routine working day. That is the cornerstone of what is admittedly a generous scheme of compensation.

Note to SMPs, HR managers, some Federation and NARPO types: you may think that injury pensioners get a good deal. Please don’t let your jealously cloud your professional judgement, or duty. Think instead, if you will, of facing a lifetime of disablement, of dealing with pain, frustration and rejection, of having your life curtailed in so many ways, and employment opportunities reduced dramatically, and then having to suffer the ignorant and often spiteful attitudes of people who should know better.

Within the police injury pension Regulations there are certain things which are fixed and thus not up for adjustment, or revision or review. They are the final police salary of the medically retired officer, the last, latest, final decision on degree of disablement, and the fact that that only a substantial alteration in degree of disablement allows any revision of the amount of injury pension paid.

The injury pension is always a percentage of that final police salary, artificially fixed in time for perpetuity, but index linked to whatever the cost of living is in a given year based on the Consumer Price Index so to protect against the devaluing nature of inflation.

Disabled former officers are expected to work and earn, if they chose to do so, to a greater or lesser degree. The Regulations are designed to take that into account. That is why there are four bands of disablement. The point that needs to be borne in mind though is that, whatever the band, there is disablement present, and thus some degree of reduction in an individual’s capacity to work and earn.

Admittedly, it is perhaps counter-intuitive to consider that an award of band four does not necessarily mean that person is totally unable to work. Of course, a sizeable proportion of people in band four are totally unable to work, but we can see that the Regulations hope or trust that some amount of work might be achievable. However, it should not be beyond the wit of so-called professionals, paid to administer the Regulations, to understand that being assessed as being in band four, ‘very severe disablement’ actually means that out of their capacity to earn (either potential or realised), at least 76% of the earning capacity equivalent to the last final salary they received as a police officer has been denied them.

If it can be evidenced that an individual former officer has detrimentally lost the capacity to earn more than 24% of what they would be capable of earning as a police officer if they were not injured, then that person is a bona fide band four. It matters not that the individual is currently earning, say £76,000 a year. It is utterly wrong for a SMP, or someone in HR to look at those earnings and to start at zero by comparing that salary with the former police salary. What matters is that this person, without the index injury, could have the potential to earn at at least £100,000 and therefore their earning capacity has been detrimentally lowered by £24,000.

There is a corollary to this which applies to the injury award given no matter what level of the banding.

It is not a zero sum calculation always starting from nought. A SMP working for Merseyside, Nottinghamshire or Avon & Somerset would treat this salary as a deductible benefit and illicitly remove it from the award, thus making the person a band one – ignoring the truth that there has been no change to the person’s medical condition and therefore no difference in the capacity to earn.

Whatever is earned is not to be deducted directly from the award. The salary of a police officer, at the time they were medically retired, is not an accurate gauge of what that person could actually earn. The award, however, makes sure that the former officer is guaranteed a proportion of at least that income at that snapshot in time.

The point is this: the salary of an officer when they are medically retired does not even equal the theoretical maximum earning capacity of that person as a police officer let alone as a productive uninjured member of society.

Likewise the injury award of a medically retired officer who, due to the incapacity of their disablement, is totally unable to work does not fully compensate that person for the loss of all of their earning capacity – it can only compensate for the amount earned when that person was able to serve as a police officer.

It is noted that some individuals, before they were injured, may have continued in a role such as a beat officer or a uniformed response police officer for which they are over-educated, over-qualified or amply experienced purely as they feel it is a vocation, they enjoy thief-taking or in the hopes that they will be able to specialise or to be promoted in the future. They may have left a high-flying job to pursue their dream of becoming a police officer.

Arguably if a true forensic actuarial compensation was calculated, the exposure of a police force to compensate for someone’s true loss of earning capacity would greatly exceed the amount payable by injury awards. In other words, the injury award is intended to dissuade those injured on duty from suing the police force that medically retired them. This is the truth of the minimum income guarantee purpose of the award and this is why anyone exercising their latent capacity to earn should appeal when a SMP or HR manager does some clever jiggery-pokery calculations involving deducting earnings from former police salary, or national average earnings, or the assumed, speculative earnings potential of the individual in the same manner than ESA is unlawfully deducted.

We at IODPA would like SMPs and HR managers to think about what they have been told by the Home Office, elements with the NAMF, and by the likes of Mr Wirz, and contemplate another short quote from Guy Kawasaki:

‘Defy the crowd. The crowd isn’t always wise. It can also lead you down a path of silliness, sub-optimal choices, and downright destruction.’